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Picking Winners

There are dozens of interesting issues now afloat between the essays and responses. Let me here pick up on two that seem particularly central to the conversation.

First, I agree with the rest of the posters that, given modern technology, copyright law will only be effective if it changes emphasis away from simple first-person enforcement and toward more complicated interventions that, by design, influence the development of technology tools and services. So, yes, copyright law will likely need to pressure Internet Service Providers to lend a hand in discouraging the most egregious forms of online infringement; and, yes, a site like YouTube in my view should have an obligation to filter for obviously infringing work. Copyright will need to take these steps with due caution. If liability is poorly implemented, these sorts of rules could chill innovation and otherwise interfere with a great deal of legitimate activity. However, I have confidence that indirect liability of this sort can be intelligently crafted, and my sense is that the law is moving helpfully in that direction. The rhetoric about a “police state” therefore sounds misplaced to me. Copyright liability can be appropriately nuanced, careful, and effective.

Second, implicit in the debate thus far is a fundamental disagreement about what copyright’s role should be. I think copyright law should do what it can to accommodate as many business models as plausible. So if new technology can lead to a rebirth of local live performances, copyright law should try to support those efforts. And if Paramount thinks that there is still room for the major motion picture even now, copyright law should again endeavor to leave that door open. The idea overall should be to let artists and entrepreneurs decide which approaches to champion, with the law doing everything it can to support those choices without itself picking winners.

This is even true as applied to Rasmus’ intentionally silly example about sea battles. Yes, copyright law should protect sea battle recreations in roughly the same way it protects Broadway musicals. That would allow the market to decide whether both or either of these creative outputs is worthwhile given the costs. This would not be copyright law subsidizing sea battles. After all, the copyright on the sea battle performance would be worth, at most, the value that consumers place on the joy of seeing the battle. I doubt that value is high today, and hence I suspect that even copyright could not and should not encourage the rebirth of this art form; but I would write the law with an eye toward allowing the relevant artists and entrepreneurs to take that risk for themselves. The elegance of copyright law is that we can do just that. Were copyright a cash grant from the government to the artist, we would have to pick winners carefully. But copyright is not cash. It is a limited right that allows the artist to capture for himself and his backers some substantial portion of the economic value created by his work. The virtue of that design is that copyright law itself does not need to vote in favor of one artist or approach at the expense of another. Instead, when it works, the law allows each artist/entrepreneur to reap what he has chosen to sow and play out the strategy he has chosen for his work and its distribution.

Also from This Issue

“How relevant is it to declare oneself to be ‘for’ or ‘against’ copyright? Neither the stabilization nor the abolition of the copyright system seems within reach. All we see is a seemingly endless assembly line of new extensions to the law being proposed and enacted,” writes Rasmus Fleischer in this month’s Cato Unbound lead essay. Meanwhile, digital copying technologies continue to grow exponentially in storage capacity, to the point where a handheld device may soon be able to carry all music ever recorded and released. This threatens to make a mockery of copyright law, and those who support the extensions of current regime are fighting back. “Every broken regulation brings a cry for at least one new regulation even more sweepingly worded than the last. Copyright law in the 21st century tends to be less concerned about concrete cases of infringement, and more about criminalizing entire technologies because of their potential uses,” writes Fleischer, who predicts “seriously chilling effects on innovation, as the legal status of new technologies will always be uncertain under ever more invasive rules.”

It is often supposed that giving individuals more freedom to share copyrighted materials with one another will amount to the abolition of copyright. But this is far from true… The copyright policies of the last decade have been based on the idea that copyright is about controlling unauthorized copying. An alternative is to treat copyright as a limitation on commercial exploitation of creative works. Under this option, individuals could make any non-commercial use they liked of copyrighted works, including sharing them with strangers on the Internet, without fear of legal consequences. Copyright law would focus on commercial entities, who are both easier to regulate and better equipped to deal with copyright law’s complexities.

Copyright law and copyright policy are both in the midst of enormous change. That doesn’t mean copyright is dying. The technologies available to facilitate the creation and distribution of creative work have themselves undergone enormous change. Copyright law is of course following suit, but as it does, we must make certain that those in the creative professions can still survive.

Tom W. Bell raises a question: Copyright enforcement always has costs. How high are we willing to allow those costs to rise? How harsh, in other words, will we allow copyright law to become, as a counterweight to the ease with which people now can copy digital media? It is conceivable, he argues, that these costs might become too great, and that we will be forced to allow copyright to end, rather than bearing them.

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